NLRB v. Local 776, IATSE (Film Editors)

• Decision Date: 10 May 1962
• Docket Number: No. 16907.,16907.
• Citation: 303 F.2d 513
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 776, IATSE (FILM EDITORS), Respondent. LOCAL 776 (FILM EDITORS), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

303 F.2d 513 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 776, IATSE (FILM EDITORS), Respondent.

LOCAL 776 (FILM EDITORS), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16907.

United States Court of Appeals Ninth Circuit.

May 10, 1962.

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Stuart Rothman, General Counsel, Dominick L. Manoli, Asso. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin Pollack, A. Brummel, Attorneys, N. L. R. B., Washington, D. C., for petitioner.

Gilbert, Nissen & Irvin, Robert W. Gilbert, Beverly Hills, Cal., for respondent.

Before BARNES and KOELSCH, Circuit Judges, and YANKWICH, District Judge.

KOELSCH, Circuit Judge.

The National Labor Relations Board found that Local 776, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (hereinafter "Respondent"), violated section 8(b) (2) and 8(b) (1) (A) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 158(b) (1) (A), (2), by causing Cascade Pictures Co. of California, Inc. to discharge an employee, Henry A. Carlson, for lack of union membership.¹ The matter is now before the court on the Board's petition for enforcement of its ensuing order and Respondent's cross-petition to review that order.

Respondent objects to the granting of the relief sought by the Board and attacks the validity of the order on three grounds: (1) insufficiency of the evidence to support the critical finding; (2) error in the admission of evidence, prejudicial to the Union; and (3) the order is excessive in scope.

It should be noted with reference to the first of these three grounds that the questioned finding is predicated upon the commission of an unfair labor practice by Carlson's employer. If Cascade's act did not constitute a violation of section 8(a) (3) or if, although it was a violation, the dismissal of Carlson was not caused by respondent, then respondent was not guilty of an unfair labor practice under sections 8(b) (1) (A) and (2).²

The trial examiner acknowledged in his Intermediate Report that there was no direct proof of respondent's complicity in the dismissal; however, he was of the opinion that the record manifested an "implicit" demand by respondent upon Cascade to discharge Carlson. Respondent readily recognizes the power of the Board to draw reasonable inferences and make other pertinent deductions from the evidence (Radio Officers' Union of, etc., v. N.L.R.B., 347 U.S. 17, 48-52, 74 S.Ct. 323 (1954)), but argues with much vigor that here this foundation is completely absent so that the finding is not "supported by substantial evidence on the record considered as a whole * * *" within the meaning of sections 10(e) and (f) of the Act.³

We have carefully considered the contention, keeping in mind that "the substantiality of evidence must take into account whatever in the record fairly detracts from its weight" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 at 488, 71 S.Ct. 456, at 464, 95 L.Ed. 456 (1951)), but nevertheless conclude that the Board's factual conclusion is neither unreasonable nor too tenuous to stand.

Cascade, Carlson's employer, was engaged in the branch of the motion picture industry that produces and distributes "television commercials"; it was party to a collective bargaining agreement covering employees who were engaged in "crafts and classifications of work over which * * * a number of designated unions including the respondent had jurisdiction." Carlson worked in the shipping department under the immediate supervision of one Selson; his particular job was "to break the film down, put it on reels, label it and see that the paper work, bills of ladings sic and anything concerning its movement was correct and that it was carried out." He had been so employed for several weeks before Cascade learned that he was not a member of any union. But although Cascade considered his job "unorthodox" as compared with the type of work performed by any of its union-affiliated employees, it nevertheless inquired of respondent whether the job was governed by the existing collective bargaining agreement. Todd, respondent's assistant business agent, thereupon visited Cascade's plant where he discussed the matter with Bernard Loftus, Cascade's supervising editor who was in charge of employment. A few days later he notified Loftus that the job came under respondent's jurisdiction. Carlson testified that thereupon "Mr. Loftus said he was very sorry, that he had the Union on his back and he was forced to let me go by the end of the week."⁴ Carlson's replacement, who was referred to Cascade by the respondent, was one of its members.

We are inclined to agree with respondent that if the matter had progressed no further and the record revealed no more than the conference between Loftus and respondent's agent, together with Carlson's discharge and Loftus' statement, hearsay as to respondent, then N.L.R.B. v. Amalgamated, etc., 202 F.2d 671 (9th Cir. 1953), which respondent urges upon us as "directly in point", would dictate a denial of the Board's petition. But such is not the situation. Respondent twice more appeared in the picture. Thus shortly after Carlson was given notice, Todd, at Selson's request, again came to the plant, where Selson explained that he particularly wanted to keep Carlson and asked whether that might be arranged. Carlson testified that during the meeting Todd observed that Cascade had itself to blame for any inconvenience due to the dismissal because "they should never had hired me in the first place because at the time I was hired the Union had members out of work." Todd further stated that the matter was one that would have to be considered by his superiors, and left. During the week Carlson visited Todd at the latter's offices. On that occasion, according to the witness, Todd advised him that Cascade had violated its contracts with respondent and was subject to a fine "but that the cause of because of? the unusual conditions as he called it, but sic they would not do that. He said for those reasons it would be necessary or better to discontinue my employment at Cascade. After that, he brought up that while the Union had no legal obligation to do anything for me he felt it was sort of a moral obligation to do something to make up for the job I had lost. And he was going to see that I would get a summer job * * *."

As might be expected, there were numerous conflicts in the evidence, and Carlson's testimony was sometimes at variance with, and even at other times flatly contradicted by, the testimony of other witnesses, especially Todd. But the trial examiner resolved the conflicts in favor of the version given by Carlson, whom he fully credited, in preference to the facts asserted by the other witnesses; and the Board accepted and adopted his findings. There the matter must rest for it is not for us to judge the credibility of witnesses; that is the function of the trier of fact. Universal Camera Corp. v. N.L.R.B., supra.

That respondent was guilty of an unfair labor practice under section 8 (a) (3) of the Act appears beyond peradventure; Loftus flatly testified that "the sole reason" for Carlson's dismissal was the latter's nonunion status and his earlier statement to Carlson assigning union pressure as the basis for this action was to the same effect even though he named no particular union. It is, of course, true that the Act extends no protection against discharge to the employee who is incompetent, insubordinate or otherwise disqualified from continuing to work; but here all the proof was to the contrary and the efforts Cascade made to reinstate Carlson more than suggest his services were satisfactory. It is likewise true that the section 8(a) (3) of the Act extends only a limited protection to nonunion members whose employers have entered into collective bargaining agreements containing union security clauses, for a proviso in that section of the Act permits the discharge of an employee who had not secured union membership within a specified time, usually thirty days after hiring, as an exception which may be asserted by way of defense to a charge of an unfair labor practice.⁵ But here, respondent made no attempt to bring the discharge within that exception; it simply "plead the general issue" by putting the general counsel to his proof, or, to use respondent's statement appearing in its brief:

"The defense offered by Local 776, as the Trial Examiner correctly observed, was that the Union did not request or otherwise do anything which made it responsible for causing Carlson\'s discharge and `disassociates itself from this conduct of the Company.\'"⁶

And the sequence of events, the fact that Carlson's job was taken by a member of respondent's union, the statements of Todd and his recognition of respondent's "moral obligation" to find Carlson work, are facts which together are persuasive that respondent played the prominent role in the affair. Employers are not in the habit of dismissing competent employees merely to replace them; this is especially true when the change entails no little inconvenience and some expense. There must be some reason and here the trial examiner's deduction that respondent was the motivating factor affords a logical explanation but-tressed by cogent evidence.

Respondent, however, insists that the examiner should not have attributed significance to the fact that Carlson's replacement was a union member. It points out that Cascade, under its contractual arrangements with respondent, was obliged to employ an applicant who possessed the most experience in the particular type of work, regardless of his union or nonunion status; and it argues that if Todd did make the statement attributed to him regarding union men being out of work, "it cannot be said that he was not referring to the fact that there were `sufficient available, qualified persons * * * to...